Mediation 201: How Mediation Works
Hopefully, Mediation 101 gave you a clear understanding as to what mediation is. Now, let’s discuss how mediation works.
Pre-Mediation Considerations
While selecting a mediator can be critical, unlike when selecting an arbitrator, parties should not be very concerned that a biased mediator might force them to enter into a “bad” settlement. Because mediation is voluntary, a mediator simply does not have the power to force a party to agree to any settlement with which that party is not completely satisfied. What is crucial about the selection of the mediator, however, is that s/he has credibility with the ultimate decision makers, i.e., the parties, not counsel. Without credibility, the parties are not going to give the mediator’s comments the full consideration that might lead them to modify their positions and settle. Consequently, it is important to ask questions like the following:
- If industry knowledge is important in understanding the dispute, does the potential mediator have sufficient industry knowledge?
- Will it impress the parties and increase the persuasiveness of the mediator if s/he is a former judge and/or has some other has special background or experience?
- How many cases similar to the one at issue did the